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The NLRB goes back to church (schools), gets entangled

In our June 2015 blog post, “NLRB Moves to Assert Jurisdiction Over Religious Educational Institutions,” we reported that Regional Directors of the National Labor Relations Board (NLRB) were beginning to exercise jurisdiction over religiously-affiliated colleges and universities—allowing unions to organize those institutions’ employees—following the NLRB’s decision last year in Pacific Lutheran University. Last week, the Regional Director (RD) of the NLRB’s Region 19 (which is based in Seattle) pushed the limits of that decision to exercise jurisdiction over Seattle University, a Catholic institution founded and operated by the Society of Jesus (also known as the Jesuits). This government examination of a religious institution’s adherence to its own doctrine presents a First Amendment issue foreshadowed by the Supreme Court’s 1979 ruling in National Labor Relations Board v. The Catholic Bishop of Chicago: “We see no escape from conflicts flowing from the Board's exercise of jurisdiction over teachers in church-operated schools and the consequent serious First Amendment questions that would follow.”

After the RD initially decided to exercise jurisdiction over Seattle University in 2014, the NLRB held an election to determine whether the Service Employees International Union (SEIU) would represent a bargaining unit consisting of all faculty who are not eligible for tenure (excluding law professors and nursing professors). The NLRB accepted review of the case, and remanded it for reconsideration in light of Pacific Lutheran. On August 17, 2015, the RD issued a “2ndSupplemental Decision and Order” asserting jurisdiction over Seattle University and ordering the ballots cast in 2014 to be opened and counted. The RD’s decision reached about as far into the doctrinal and ecclesiastical workings of an acknowledged religious educational institution as a federal government agency has ever reached, probing even the level of the university’s compliance with an apostolic constitution issued by Pope John Paul II on Catholic universities.

The NLRB’s Pacific Lutheran test, which the RD purported to have applied, allows the NLRB to assert jurisdiction unless an institution (1) currently holds itself out as “providing a religious educational environment” and (2) “holds out” those employees that a union seeks to represent “as performing a specific role in creating or maintaining the university’s religious educational environment.” “[E]xtensive testimony . . . about how the University’s mission and vision statements and Jesuit Catholic identity pervade the University in all its operations” persuaded the RD to find that Seattle University met the first part of the test by holding itself out as a religious educational institution.

The RD found, however, that the university did not sufficiently hold out its faculty members as “performing a specific role in creating or maintaining the university’s religious educational environment” to meet the second part of the Pacific Lutheran test. The RD relied heavily on the university’s own nondiscrimination statements, which prohibit discrimination in employment based on religion, and the university’s interview guides, which prohibit asking questions of interviewees about religion or creed. During the hearing, one witness testified that he was “strongly encouraged to speak to Jesuit values” during his employment, but other witnesses said that during the hiring process there had been no mention of a religious function to their jobs. The faculty handbook stated that “the faculty member becomes committed to the University’s mission . . . within the context of the Catholic and Jesuit educational tradition.”

After analyzing the hiring process and faculty handbooks, the RD examined the specific role of particular faculty members, including Jesuit instructors, and concluded that the university’s teaching about religion itself was not sufficiently sectarian to avoid the jurisdiction of the NLRB. The RD acknowledged that 10 faculty members were Jesuits, but found it was “not clear” that the Jesuits were members of the proposed non-tenure-track bargaining unit.

In NLRB v. Catholic Bishop of Chicago, the Supreme Court predicted a slippery slope by foreseeing that there would be “no escape from conflicts flowing from the Board’s exercise of jurisdiction over teacher in church-operated schools.” The RD has raced down that slope, presumably considering it unimportant that members of a religious teaching order might be included in a voting unit. The RD asserted both the authority (and seemingly the competence) to assess the level of religious observance exhibited by faculty members within Seattle University’s Department of Theology and the School of Theology and Ministry, including whether the university complied with the Pope’s declaration in Ex Corde Ecclesiae. The RD’s decision also suggests that the university’s president, Father Steven V. Sundborg, S.J., had been requested to identify which members of the faculty had received a “mandatum” from the Catholic archdiocese signifying that the instructor “is teaching within the full communion of the Catholic Church.” President Sundborg apparently declined to identify those instructors with the requested religious credentials. The RD’s actions—as a federal officer adjudicating an institution’s compliance with Canon Law—constitute a great intrusion into the religious liberties of a religious institution.

Much of the decision examines Seattle University’s ecumenism and inclusion of other Christian denomination adherents (in addition to the matriculation of “at least one Muslim student)” with the RD suggesting that the university’s School of Theology and Ministry was not sufficiently sectarian to escape NLRB jurisdiction. Ironically, the RD relied on a fundamental part of the religious mission of the Society of Jesus—dialogue with other religions—as signifying a lack of religiosity itself.

According to the decision, School of Theology and Ministry was originally intended to prepare women religious and lay ministers for service in Catholic parishes, but now operates in partnership with the Catholic archdiocese and several mainline protestant denominations and has looser affiliations with other Christian denominations. Despite the fact that the school offers academic degrees designed to prepare students for Catholic diaconal ministry or ordination as ministers of partner denominations and that it trains 50 to 60 percent of its students to work for churches, the RD found that an applicant to teach in that school would not conclude that his or her faculty responsibilities would require “specific ‘furtherance of the college or university’s religious mission.’”

The decision acknowledges that the institution produces graduates who have received a religious education from somewhere within the university, but overlooks the self-evident proposition that faculty members must have been involved in providing that religious instruction. Given that evidence of faculty contribution to Seattle University’s religious mission was rejected or ignored by the RD, it is reasonable to ask whether this RD will ever find a religious institution to be outside the NLRB’s jurisdiction, unless it imposes a strict sectarian hiring requirement. If the ballots are counted against the university, the SEIU may represent members of the Jesuit order who teach religion, theology, and ministry to students preparing for ordination as Catholic deacons or ministers of partner Christian denominations. That would seem to be an issue headed for resolution by the Supreme Court.